Reflection One: The Resilience of Consultation: What happened to just criticism ?

Posted on 10th July, 2023

 

Twenty years ago, as we were considering the founding of The Consultation Institute, an old friend approached us with some well-meaning advice

 

“Don’t get too hung up on Consultation” he said. “In five years, it will have gone out of fashion; it is just the management craze of the moment.” For good measure he added that the whole concept was, in any case, deeply flawed. Being, in his words, “tokenistic” and misleading.

Click here to download for a word file

Recalling his words, it’s easy to see that he was wrong in his first prediction. Consultation has not disappeared from view. But he may well have been closer to the mark in his criticism of the concept.

In fact, from the earliest days of the Institute, we had to address several critiques of real substance.

 

The first was that consultation was an elitist process, strongly biased in favour of existing interest groups and stakeholders who knew how to manipulate the system. It was true in 2003 and is probably also true today.

 

The second was that many consultations are a sham, the decisions having been already taken and that, at best, it is a process to double-check and act as a failsafe in case someone has overlooked something genuinely game-changing. Again, true in 2003, and often true today.

 

The third criticism was that when consultations occur, they had little influence over decision-makers, who could ignore what consultees may have said at will. That also was largely true, though probably less so today.

 

Classically, these critiques led to a conclusion, often urged upon us – that it was time to move on from consultation as it was now significantly discredited, and instead focus on the growing range of other participative and deliberative mechanisms that were far more effective forms of public involvement. In 2023, the choice is even bigger, but the world is yet to abandon the practice of consultation.

 

It is time to look again at these criticisms, for there is no doubting that many hold good to this day. But there have been changes.

 

Elitism

 

The charge is that so many consultations are only accessible -  in so many senses of the word – by those ‘in the know’. It is geared to organisations and maybe a few individuals who know that the exercise was planned, who probably already understand the options and who are comfortable with the language or jargon of the subject-matter. It harks back to the days of the ‘big fat document’ and even though those have not entirely disappeared, there are now plenty of ‘small slim documents’ that are similarly intimidating. Many of these are specialist, technical consultations which are clearly targeted at a narrow range of stakeholders and were never designed to gather views from the general public. Elite? For sure.

 

Twenty years on however, and the whole idea of elitism is now frowned upon. Whereas once it may have suggested a refined, sophisticated experience of the world, tinged maybe with a touch of perceived excellence, it is today associated with the liberal graduate elite’ held by academics such as Matthew Goodwin to have been so out of touch with the rest of society as to have led to the BREXIT referendum result and the collapse of the Red Wall to a Conservative Party fighting a culture war against the so-called elite.

 

For processes such as consultation, the allegation of elitism therefore suggests favouring those who are well-educated, those who live in London or the so-called ‘elite towns’ and those (including apparently some who are in the ‘equalities’ categories) who are over-represented in formal dialogues with public bodies. But this was probably always the case if one only looks at the traditional ‘documentary’ style of seeking views. The rigour of a detailed, complex consultation is a strength, not a weakness, and in The Politics of Consultation, we argued against the ‘dumbing down’ of debate. To the extent that it may be ‘elites’ that wish to retain the rigour of the traditional approach, the criticism is fair.

 

On the other hand, it is possible to conduct a process that is more accessible and fair to a wider audience. Some forms of online consultation can attract more young people and others who find the old bureaucratic ways less appealing. Asking for consultee views on mobile applications are even better, though the risk is that one loses the ability to base the dialogue on sufficient information. In fact, the whole move towards more deliberative forms of consultation is designed to make the process more inclusive so everything from Focus Groups to Citizens Assemblies have served to equalise the opportunity for a wider range of voices to be heard.

 

So, whilst the criticism of elitism can still apply in cases, it is the job of consultation managers to minimise its effect by securing the widest possible participation as is appropriate for the circumstances. Hence the need to consider the subject-matter, the methodologies. and the whole art of promoting and publicising the exercise. What they have today is a far wider menu of methods from which to choose, and in opting for a hybrid mix of dialogue methods, there is surely less excuse for failure.

Consultation is a Sham

 

This goes to the heart of the issue. Why consult, if you have already made up your mind about the outcome? The term we have adopted over the years is pre-determination, borrowing from planning law and now used extensively in the public engagement context. It is such an obvious disqualification for the credibility of any meaningful dialogue. It has therefore secured for many consultees the satisfaction of victory in many a Judicial review where organisations were found to have been in breach of the Gunning One principle – that consultation must take place whilst decisions were still ‘at a formative stage’

 

As often occurs, the truth is a little less straightforward; there are important nuances.

 

The law is sufficiently settled for all but the most reckless organisation to guard against pre-determination. Twenty years ago, merely asserting that no final decision had been taken was commonplace, with consultors content to publish preferred options without much rationale for their choice.

 

Today, emphasis has switched to pre-consultation, and making those processes as transparent and inclusive as possible. Here the picture is more mixed. The NHS has made notable progress, assisted by a legislative framework which demands public and patient involvement in the preparation of proposals, robust guidance and a reasonable - if inconsistent - willingness to invest in training. Elsewhere, we still have options emerging behind closed doors and seemingly designed to produce only one inevitable answer.

 

The problem has often been caused by statutory obligations to consult where legislation sought to use consultation as one of the checks and balances placed on public bodies. Some of these were always unrealistic. By the time technical Regulators have ‘done their homework’, it is likely that they will have had to do so in some form of collaboration with key stakeholders. What makes a consultation a ‘sham’ is when there is a lack of transparency, often justified by excessive reliance on ‘commercial confidentiality.’ In recent years this has been noticeable in large development projects, where sceptical elected members simply don’t know enough about the deals negotiated. Six years ago, a major row over a massive housing regeneration scheme in the LB of Haringey lost the Council Leader her position with campaigners challenging Council officers roughly on the basis “if we’d known then what we know now … we could have taken a different approach.”

 

Such consultations today are less common simply because decision-makers are wary of the consequences. As we outline in our reflections on the law, two decades of judicial reviews have made pre-determination only too easy to prove. Organisations who are clearly intent on a particular outcome are still adept at camouflaging their intentions, but is it increasingly problematic for them. The temptation is to be selective with the truth of the information they make available. More often than not, clued-up stakeholders are not fooled and are getting better at calling out the worst cases and using media and political pressure as well as the law

 

Insufficient influence

 

Twenty years ago, it was commonplace for senior decision-makers to be largely unaware of consultations undertaken in their name. Even if aware, they might know little of what consultees may have said.

 

Top barrister, David Wolfe KC tells a story of having joined the Board of a public body which needed to take account of a consultation relevant to a decision they were about to take. When he asked to see the data, he was told by the supporting officials that they (ie the officials) had seen the consultation output and that they were satisfied it told them nothing new. So, there was no need for the actual decision-makers to trouble themselves.

 

In the higher echelons of Government, of course it has been customary for Ministers to receive fairly concise summaries from civil servants but even these have now been challenged in the Courts. When the Mayor of London tried to close the public counter at Wimbledon Police Station, his action was declared unlawful simply because data analysts had failed to spot a single but politically important consultee submission, and thus prevented the decision-maker from being able to take it into account.

 

In reality, it should not need developments in the law for consultor bodies to work out the futility of spending money, taking time, and risking their reputations if they cannot be seen to be taking its output seriously. We still have gung-ho Managers who think they can sidestep this part of the process, but increased awareness of best practice and the growing professionalism of public service Comms teams seem to have restrained such tendencies. Whether sufficient weight is given to consultation output may be a different question, but that is itself often the product of what other inputs there may be to the process. As the world’s interdependencies multiply, and timescales foreshorten – as they did over many issues relating to the pandemic lockdown, life gets tougher for policy-makers.

 

At least today, they are more likely to look at the consultation output.

 

Summary

 

Consultation has remained a resilient process because, slowly if imperfectly, the most telling criticisms have been addressed. They are still absolutely valid for some consultations, for some organisations, and probably for some issues where transparency and open decision-making is not as culturally embedded. There is also probably a long-term trend towards training and best practice eliminating the more egregious malpractices. The mechanics of a consultation are, in short, more likely to be reasonably satisfactory, but the more difficult issues of The Politics of Consultation still persist.

 

Rhion H Jones LL,B

Elizabeth Gammell

July 2023